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Lawsuit Planned Over Backroom Deal to Downsize University Board of Regents

A former University of Hawaii regent plans to sue over what he calls an unconstitutional reduction of the university’s governing board. State lawmakers cut the number of regents by more than 25 percent in the 2019 legislative session.

The University of Hawaii is governed by the Board of Regents with members nominated by the governor and confirmed by the state Senate. They’re unpaid volunteers who have “exclusive jurisdiction” over the management of the university, according to the Hawaii Constitution.

Attorney Jeff Portnoy served as a regent for the past five years and was hoping to be reappointed this summer. But that was before state lawmakers reduced the size of the board from 15 to 11, a move Portnoy calls an “attack on the constitutional autonomy” of the university.

The state constitution gives the Board of Regents, of which the UH president is executive officer, autonomy to manage the university, but lawmakers retain the right to pass laws of “statewide concern.”

The board has been the subject of numerous political turf wars in the past.

In 2007, Democratic lawmakers overrode a veto from Republican Gov. Linda Lingle to increase the Board of Regents from 12 to 15.

This year, lawmakers reduced the number of seats on the board and reapportioned the remaining seats by geographic region of the state. The 2007 measure required each county be represented on the board, but the recent change gives neighbor islands a far greater weight.  

Under the new 11 member board, a six-person majority of regents would come from the neighbor islands, despite six of the 10 campuses and 80 percent of students in the University of Hawaii system being located on Oahu.

Previously, the city and county of Honolulu held seven assigned seats. That was reduced to five. Two at-large seats, not assigned to any particular island, were also eliminated.

Jeff Portnoy calls that change an unconstitutional overreach and plans to sue the state.

“I think most legislators had no clue what was going on, but there was a small handful and I’m prepared to name them in my lawsuit, who I think are the driving force behind this and many other efforts to interfere with the university. And I will be naming them,” Portnoy said.

The law that reduced the number of regents was not passed using the normal procedure of three public hearings and votes in each chamber. So how did lawmakers make this change?

The answer lies in a procedural technique used by lawmakers to subvert the normal legislative process. The measure’s supporters employed what's called "gut and replace."

Sandy Ma runs the government watchdog group Common Cause Hawaii, which is currently suing the state over gut and replace. She told HPR that despite several provisions in the state constitution meant to prevent this type of deceptive legislating, gut and replace remains common.

“Gut and replace is a policy used by this Hawaii state legislature to take a bill that's originally introduced in one chamber and once it starts moving then it's stripped of its entire contents and replaced by the other chamber,” Ma said.

In this case, East Hawaii Island Sen. Kai Kahele wrote a bill to reduce the Board of Regents, but it failed to get support in the House of Representatives.

Senators later gutted a different bill, one dealing with the completely unrelated issue of distance learning at the university, and inserted the text of Kahele’s original bill.

Kahele has been a regular critic of the University of Hawaii on issues like the Board of Regents and Mauna Kea Management.

He declined to comment for this story.

In 2017, Kahele said that he was “exasperated” when East Hawaii was left without a representative on the Board of Regents for several months. At a separate town hall later that year, he was recorded by Big Island Video News speaking on broader university issues.

“The University of Hawaii has autonomy. It’s constitutionally mandated. The legislature is not supposed to micromanage the university. I don't want to micromanage the university, unless it's a matter of statewide concern and then that's where you have a little bit of legislative overreach because now it affects the entire state,” Kahele told an assembled crowd, foreshadowing this year’s action.

The effort to reshape the Board of Regents had support from Sen. Donna Mercado Kim, another frequent UH critic.  

During the 2019 legislative session, Kim, who heads the Senate committee on higher education, led a short-lived effort to eliminate more than 200 faculty and staff positions across the University of Hawaii.

Kim repeatedly voted for gutted-and-replaced language, despite professing to oppose the process in a 2018 interview during her unsuccessful bid for Congress.

She did not respond to a request for comment on this story.

Former Regent Portnoy says he was never given any reason for downsizing the board. The lack of transparency in the legislative process and the refusal of elected officials to provide their reasoning leaves unclear the intent of restructuring the Board of Regents.

Whether that new board structure is legal will likely be decided in court. Portnoy says he could file suit as soon as September.

Disclosure: Attorney Jeff Portnoy has represented various Hawaii media outlets, and has done occasional work for Hawai'i Public Radio.

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